Bevis v Evans & Company Pty Ltd [1990] QSC 59

20 30 so 60 N THE SUPREME COURT OF UEENSLAND IVIL JURISDICTION EFORE MR. JUSTICE MCPHERSON RISBANE, 28 MARCH 1990 5G cro(o5 r~;-=::1·,:;~.--:-.~·.::-:.:·~~----- . i o~,:urf ~P~~"/ ~:,~~~o I--~-~~No. 2491 of 1987 (Copyright in this transcript is vested in the crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,court Reporting Bureau.) BETWEEN: DARYL CHRISTOPHER JAMES BEVIS Plaintiff -and- GRAHAM EVANS & CO. PTY. LTD. Defendant JUDGMENT HIS HONOUR: There will be judgment in this case for he plaintiff in the sum of $483,907.44 with costs. I publish my reasons. -Govt. Printer, Qld. 1 10 20 30 40 50 -- 1 of 12 -- ?,-0.c; IN THE SUPREME COURT 0 OF QUEENSLAND No. 2491 of 1987 Before Mr Justice McPherson BETWEEN: DARYL CHRISTOPHER JAMES BEVIS Plaintiff AND: GRAHAM EVANS & CO. PTY. LTD. Defendant JUDGMENT - McPHERSON J. Delivered the Twenty-Eighth day of March, 1990 CATCHWORDS: Damages - Personal Injuries - Quantum. Counsel: Mr Morrison Q.C. with Mr Dooley for the Plaintiff Mr White Q.C. with Mr Egan for the Defendant Solicitors: Messrs. Price & Roobottom for the Plaintiff Messrs. Henderson Trout for the Defendant Hearing Dates: 12, 13 and 14 March, 1990. -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: DARYL CHRISTOPHER JAMES BEVIS AND: GRAHAM EVANS & CO. PTY. LTD. JUDGMENT - McPHERSON J. No. 2491 of 1987 Plaintiff Defendant Delivered the Twenty-Eighth day of March, 1990. The plaintiff, who is now nearly 40 years, was 33 years old when he was injured in the industrial accident out of which this action arises. He was employed by the defendant on the construction of a high rise building known as Atlantis on the Gold Coast. As slip construction foreman he was in charge of the placing of concrete to form the levels of the building. The method involved the use of equipment known as a placing boom, which distributed concrete drawn up to the top of the building through a pipe or pipes from ground level. On 16 June, 1983 the building had reached the 36th level some 110 metres above ground and steps were being taken to disassemble the boom and lower it from the top of the structure. For this purpose it was necessary for the boom to be detached and then lifted off its base using a high-rise crane known as the 350. The boom was secured to the substructure in part by means of four horizontal steel bolts or pins located at each corner. It was necessary for these pins to be removed before the 350 crane engaging the boom through lugs located along its upper length could lift the load clear. Three of the pins were removed, but the fourth resisted all efforts to extract it. A -- 3 of 12 -- 2 discussion or a dispute ensued among those present, who were the crane driver Cranfield, the dogman Waterreus, a rigger named McDade and the boom driver Hallam. The plaintiff came up from below to attempt to resolve the dispute. After further unsuccessful attempts had been made to hammer the pin out, the rigger suggested to the dogman that they slew the crane and try an angled pull on the load to loosen the pin. The plaintiff was standing on the access platform engaged in talking to the engineer on his two way radio when the pin was finally dislodged using a steel punch and hammers. He looked up at the boom and noticed that the electric power leads from ground level were still connected to the boom and switched on. He at once told the boom operator to disconnect the leads, and Hallam and the others moved round the platform attending to this task. When it was completed the dogman instructed the crane driver to lift the load. The plaintiff was standing in the north west corner of the access platform when he felt a severe shaking or vibrating of the structure. The boom had lifted free and was rotating and swinging towards the three men on the other side of the platform. He gripped the boom in a futile effort to hold it from swinging on to them. He then realised that it was twisting and starting to swing back in his direction. He was going to duck out of the way when he realised he might be decapitated and he threw himself bodily on to the handrail, leaning over it in order to try to keep out of the way. The load struck him on the left side of the rear of the chest and on the left wrist. Liability was, in the end, not contested in the defendant's final address. I am in any event in no doubt that the cause of the injury sustained by the plaintiff is directly traceable to -- 4 of 12 -- 3 the negligence of the crane driver Cranfield. The evidence of Mr Millard, a witness of great experience in the operation of cranes, persuades me that the crane driver could, with the exercise of reasonable skill and care, have lifted the load vertically without permitting it to swing when it came free from its base. By using the upright dowells fitted to the base of the boom he could have centred the load before finally lifting it clear. The most probable explanation of what went wrong is that after the crane had been slewed the crane driver failed to return the jib to a position vertically above the centre of the load before proceeding to lift it. The result of the angled lifting movement he employed was to impart a swinging momentum to the load once it cleared the dowells. The defendant is vicariously liable for the negligence of the crane driver and also of the dogman, to the extent that it was his function to warn the former of the danger. The plaintiff therefore succeeds on the issue of liability in the action. It was submitted by the defendant that, even so, the plaintiff was guilty of contributory negligence in failing to take proper care for his own safety. Two particulars of contributory negligence were advanced in submissions. It was said that the plaintiff should have thrown himself down upon the platform or adopted other evasive action instead of taking refuge as he did by leaning over the handrail. r.t is not, however, for the defendant, who created the danger or emergency threatening the safety of the plaintiff and the others with him on the platform, to be minutely critical of the plaintiff's responses or reaction to that emergency. In any event I am far from persuaded that any alternative course of action was available to / -- 5 of 12 -- 4 the plaintiff that would have ensured his safety. The access platform between the base and the handrails was no more than a metre wide, and the plaintiff was confronted by an object swivelling towards him of which a part extended below the level of the arm of the boom. In this matter the onus or proof rests on the defendant. It has failed to discharge it. I reach of the same conclusion with contributory negligence respect to the other put forward by the particular defendant. This was that the plaintiff should not have been on the access platform at all once the lifting process commenced or was known to be about to commence, with-the consequence that he unnecessarily placed himself at risk of negligence on the part of the crane driver. There are several answers to this proposition. There is an answer to interrogatory (ex. 27) in which the defendant admits that it was the plaintiff's duty to be on the access platform at the time in question. Egress from it was by way of a trap door through the steel floor, and was by no means easy to accomplish. The utility of having the plaintiff present is demonstrated by the fact that it was he that noticed that the electric power leads were still connected to the boom. Had he not observed this and given orders for it to be disconnected, the consequences would plainly have been very serious. Then again it was, as the evidence establishes, the function of the dogman alone to give instructions to the crane driver for the lift to begin. If there was danger to himself, to the plaintiff, or to any of the others on the platform, one might reasonably expect the dogman to have been aware of it and to have warned those who were there. It was not for the plaintiff to anticipate negligence on the part of persons more -- 6 of 12 -- 5 skilled and experienced than .he in the management of the crane. If the crane driver, the dogman and the rigger were not conscious of the danger, it is difficult to see why the plaintiff should have been aware of it. I therefore acquit the plaintiff of any want of care for his own safety on the occasion in question. I turn now to quantum of damages. The plaintiff recalls being lifted down the side of the building in the dog cage. He was in severe pain. He was taken to the Gold Coast Hospital and admitted to the intensive care unit. His injuries comprised bruising of his anterior and posterior chest walls mainly on the left side. He also had a fracture of the lower left radius and damage to the tendon. There was some fear of an infection in the hospital and after only a week he was, over his protests, discharged from the hospital. He was then admitted to the Allamanda Hospital where he remained for another week or so, coming under the care of Dr Dodd, orthopaedic surgeon, and Dr Entsch, a physician. His wrist had undergone surgery on 21 June, 1983 but it continued to trouble him, and further operations were performed on 1 August, 1985 and again on 11 September, 1985, leaving an area of post-operative scarring. The wrist continues to give pain and he constantly wears a wrist brace. The degree of permanent disability is of the order of 5 to 10 per cent only; but the tendon is involved and he has lost the use of the gripping movement of his thumb. This has the consequence that he is unable to hold ladders and rails, which is essential in working on buildings in the course of his calling as construction foreman. On this footing the plaintiff's damages would have to be assessed on the basis that he was able to work only at ground level. Perhaps he could find suitable employment -- 7 of 12 -- 6 there; but the wrist disability is not the only, or the most serious, consequence of the accident. Even before he sustained the injury in 1983 the plaintiff suffered from diabetes in the form known as insulin dependent diabetes. His condition has been made very much worse as a result of the injury. That a diabetic condition may be aggravated by physical trauma or emotional stress is established by the testimony in particular of Dr A.E. Stocks, whose evidence I accept. Dr Stocks, who is a specialist in endocrinology, is himself a diabetes sufferer and so has more than one reason to understand the condition arid to know its incidents. He had in fact first been consulted by the plaintiff in December, 1980 after the latter had been diagnosed as a diabetic in June, 1978. After Dr Stocks had begun treating him the plaintiff's condition, was, he said, "reasonably well controlled" but after the accident "the whole situation changed". There is now a need for constant monitoring by taking a minimum of four blood glucose tests a day and, under conditions of increased stress, at least six a day. At night the plaintiff uses a device known as a sleep sentry, which is a form of alarm designed to wake him up before he becomes comatose. The effect of the injury sustained in the accident has been to introduce a high degree of fluctuation, and unpredictability of fluctuation, of his blood sugar level, with consequent serious disruption to his way of life. The unpredictability means that it is impossible to adjust his insulin regime in advance. The result has, not surprisingly, been to make the plaintiff depressed and anxious, in turn rendering his diabetes harder to control. His whole outlook and personalitj have changed. -- 8 of 12 -- 7 It is evident, and I so find, that the plaintiff's stress threshold has been greatly diminished making him more susceptible to diabetic comas, which have occurred with much greater frequency than before 1983. He returned to his work after the accident but soon found he was unable to cope with ladders and lifting tasks. He continued to be employed by the defendant in a succession of other roles tending in the direction of clerical tasks; but the periods of work were discontinuous because of interruptions occasioned by the need for operative treatment to his wrist and recurring diabetic attacks. He is no longer in paid employment, and now remains at home doing household duties and looking after his three children while his wife works as a teacher' s aide. He finds housekeeping by no means free from stress, and his wrist injury makes it difficult or impossible to perform ordinary domestic and other activities like mowing, hanging out washing, handling shopping trolleys, and washing the car. He finds driving the car stressful, and he is now essentially home-bound, having on specialist advice given up participation in the affairs of a voluntary association for diabetics. His only outside activity consists of acting as school photographer and accompanying teachers and children on school outings. He can no longer play tennis or golf or engage in surfing as he did before the accident. I have reached the conclusion that the plaintiff is now basically unemployable in any occupation that is capable of being identified from the evidence given at the trial. Because of his wrist disability he is physically incapable of resuming, either safely or at all, his former duties as a construction foreman; in addition he has been away from that employment for six or more -- 9 of 12 -- 8 years, and it will be difficult for him to make a fresh start in the industry at the age of 40 years. One might think that with a permanent disability of the wrist of the order of only 5 to 10 per cent, there ought to be some avenue of employment open to him. However, he left high school comparatively early and before the accident had spent the whole of his life in the construction industry. Attempts to retrain him as a computer operator have failed because he found the process of study and examination in the college course imposed stress that led to further problems with his diabetic condition. That condition, which lies at the root of all his other difficulties, will not now be reversed or even much alleviated by the passage of time. The successful conclusion of this litigation will remove many of his financial worries; but his greatly increased vulnerability to stress from other sources, with its attendant consequences, means that his present condition is essentially permanent and unlikely to improve much, if at all, in future. I find that this state of affairs is directly attributable to the accident and the injury sustained in June, 1983. There are some discounting factors. I was urged by the defendant to find,that some other physical or emotional trauma apart from the accident would in the ordinary course of events inevitably have brought the plaintiff to his present condition. Dr Stocks rightly conceded this as in "theory" possible. I approach the matter from that perspective. The problem is to decide when, if at all, it was likely to have occurred. It was urged by the defendant that I should accept that the precipitating event would have taken place at some time shortly after the accident in June, 1983; but I am not willing to make any such assumption. On -- 10 of 12 -- 9 behalf of the plaintiff Mr Morrison Q.C. submitted that a reasonable approach would be to discount the loss of earning capacity for the future by about one third, to take account of this and various other contingencies, which include the vicissitudes of employment in the building industry. A discounting factor of that magnitude seems to me to be not unduly generous to the plaintiff, and I adopt it. Of course, it must also be extended, although in a somewhat reduced degree, to the plaintiff's other losses, such as pain, suffering and loss of amenities. The element of speculation that is thus introduced into the assessment is inescapable. Bearing these matters in mind I assess damages as follows: 1 . Pain, suffering and loss of amenities. I award $45,000.00, of which $25,000.00 is apportioned to the past, carrying interest at 6 per cent for 6.75 years, which amounts to $10,125.00. 2. Special damages. Hospital, medical and miscellaneous other expenses in the sum of $12,179.50 have been paid by the Workers' Compensation Board. There is a Fox v. Wood component of $4,866.26 in the Board's payments. Total Board payments excluding that figure are $55,108.22. 3. Past economic loss. Mr Morrison provided a calculation of plaintiff's losses through time off work from 16 June, 1983 to trial, producing a total loss of $153,410.91. It is based on the plaintiff's oral evidence and information contained in his tax returns, which were tendered. There is no evidence about wage rates for the period from 1 January, 1987, as to which Mr Morrison proposed the addition of an annual increment in each subsequent year based on what is said to be the inflation rate. It may be a matter for judicial notice that wage rates continued -- 11 of 12 -- 10 to rise during that period; but I consider the method proposed too conjectural for the purpose of assessing the plaintiff's wage loss over that time. However, the amount involved is probably no more than $6,000.00 or $7,000.00, and it is reasonable to exclude something like it from the plaintiff's compensatory damages in recognition of the countervailing need to take account of contingencies adverse to the plaintiff, such as periodic unemployment in the building industry. For past losses of income I will allow $145,000.00. For the purpose of the interest calculation, that sum must be reduced by amounts of workers' compensation ($42,929.12) and invalid pension payments ($17,319.00) received. Interest at 6 per cent for 6.75 years on the balance of $84,752.00 amounts to $34,325.00. 4. Future economic loss. I regard it as reasonable to treat the plaintiff, now 40 years old, as having had an expectation of working to the age of 60. In this instance I am prepared to adopt an average future net earnings rate of $675.00 per week over the period of 20 years involved. The discounted present amount is $449,550.00. Applying the further discount of one third that I have already adopted produces a total for future economic loss of $299,700.00. The sum of the foregoing amounts is $539,016.00. This sum includes the amount of $55,108.82 repayable to the Workers' Compensation Board, which must be deducted, leaving $483,907.44 for which judgment will be given for the plaintiff with costs. -- 12 of 12 --